Democrats want to protect special counsel after Trump’s flirtation with firing Mueller
It would be natural for Mueller to investigate an effort to oust him as special counsel, said Paul Rosenzweig, a senior fellow at the criminal justice think tank the R Street Institute, who was a member of the team led by independent counsel Kenneth Starr that investigated President Bill Clinton in the 1990s.
Obstruction-of-justice cases turn on motive, he said. To prove a criminal case, a prosecutor must demonstrate that a defendant took action to disrupt a criminal probe with a corrupt motive, generally to hide criminal activity. Rosenzweig said that Mueller could use Trump’s attempt to remove the special counsel as part of an obstruction case, particularly if it appeared that the reasons Trump tried to cite were a pretext for disrupting the investigation.
“A way of analyzing it is to assess the strength or weakness of the professed reasons to fire him. If they, on reflection, seem moderately legitimate, well, the president should fire someone who has a conflict of interest.” On the other hand, Rosenzweig said, if the reasons were “pretextual,” an obstruction case would have more merit. “It would appear more in the nature of a conscious … effort to frustrate an investigation of [the president’s] own misconduct,” he said.
Rosenzweig said the whole issue could be moot, however, given that Mueller is likely to feel bound by Justice Department legal findings that the president cannot be criminally indicted. Instead, Mueller could file a full accounting of Trump’s actions in a report to Deputy Attorney General Rod Rosenstein, who would have to decide whether to make the report public or transmit it to Congress. It would be for Congress to decide whether to initiate impeachment proceedings and what legal standards would govern whether the president had committed impeachable offenses.
Democratic leaders in Congress have shied from discussing whether they should try to impeach Trump, which would first require Democrats to assume the majority in one chamber of Congress. Those involved in negotiations over bills to protect the special counsel, including Coons and Booker, say they just want a vote.